THE CITY OF M}:XICO.
consequences. There will be a finding, therefore, that the injury to the Iceland was caused by the fault or negligence of those in command of the Mariel , and that the damages should be paid by the Mariel. The libelant in this case seems to have proceeded upon the assumption that he would make everybody thfl,t was in the vicinity of this collision parties respondent, whether he had any proof of their negligence or fault or not; and inasmuch as the proof has wholly failed of making the Welcome or the· Messenger in any degree blameworthy, the libel must be at the cost of libelant, as against the Welcome, Messenger, and Butters, and a decree entered in favor of the libelant agilinst the Mariel alone for the damages and costs, and a reference to the com' missioner to take proof in regard to the damages.
TH'E CITY OF MEXICO. UNITED STATES 'l1. THE CITY OF MEXICO.
(Dilltrict Oourt, 8. D. Florida. June 14, 1887.)
SHIPS AND SHIPPING-FORFEITURE UNDER NEUTRALI'rt :LAWS-WHO ARE INFORMERS.
Where the testimony showed that the entire crew of a vessel, which was afterwards seized and forfeited, met the consular agent upon his leaving the ship, anli demanded. an and made a statement their and the facts on WhlCh they were based, and protested agamst proceeding on the voyage, "t which meeting the chief mate took a prominent part, but no steps were taken by the consular agent looking to the seizure of the vessel, but an arrangement was malle to proceed on the voyage; that, after thedeparture of the consular agent, the crew held another meeting, and drew up a formal written protest, setting up the facts before stated, and refusing to proceed on the under any circumstances, which protest was not in the handwriting of the mate, and was signed by all the crew; that, upon the receipt of. this protest, the consul began the first official interference in anticipation of seizure, took the crew ashore, and took the sworn testimony of each of the crew upon thechllrges preferred by them against the officers and passeng-era of the.vessel,at which hearing other members of the crew took as prominent part as did the mate: that, after this investigation, a man-of-war w&.s sent for, and the seizure made: held, that the entire crew, and not the mate, were the informers, so as to entitle them to the informer's moiety.
2. SAME-INFORMATION NOT ACTRD ON, , Neither a consular officer who furnishes the government authorities with a statement of the facts regarding the sailing and the objects and intentions of a vessel, and does all in his power to thwart or prevent her voyage, and after her seizure furnishes assistance of much value in obtaining evidence, nor .a detective employed by such consular officer to obtain accurate information. and upon whose information such officer acts, are informers so as to entitle them to the informer's moiety, where such acts and information do not result in the seizure. of the vessel, anp. it does not appear that any party active in the seizure had any information from such consular officer or detective, or ordeTs or inlltructions from those they had informed. ' 8. SA'ME-N AVAL AND CONSULAR OFFICERS. United States naval officers, and a consular agent who conveyed jnformation received by them, leading to the seizure of a vessel, to other official authorities, but gave no information except what had been received in the regular discharge of their duty, are not informers. , .
In' a proceeding to enforce the forfeiture of 8 vessel for violation of the laws, the fact that, after a 'decree of forfeiture, the calle was all?weltto ofen for further liearing on the question of who :ware entitled. to a 0 tlIe proceeds as illformers, and that only one person filed 8 petition making a claim, does not deprive others appearing on tlIe original evidenee to be·entitled to share as Informers.
In Admjralty. Forfeiture. In the matter of informer's moiety. Proctors for petitioners, viz.: James. ParkCrand G. Brrnvn Patterson, for Admiral.Jouett and others. Phillip J. ,Joacherrt8f!J1l, for Consul Gen. Baiz. John R. Abney, for Green. John A. Osborne, for Mehan. Louis Z. Kinstler and Jefferson B. Browne, for McLaughlin.
LoCKE, J. This cause having been heard, and a decree of forfeiture pronounced under the law for the prevention of the violation of neutrality, (Rev. St. § 5283,;28 Fed. Rep. 148,) it remained to designate the informer to whastf Use the one-halfo! the proceeds should go. The case, the evidence presented at it, pointed out who might with good reason be considered the informer; but tbe.questiQIl whethe.r there might not bl}some ope else who, uponllofullec hearing of the origin of the case, might have some rights, SUggested itself'1and ¢atter was held under advisement, and an opportunity offered fOfi anyone to make and suppor-t a claim to the informer's share whocollsideted<himselfentitled. .Under this notice Jacob Baiz,oonsul general,of at New York; Rear AdmiralJames E. Jouett, commanding theN. A. squadron; Robert,Boyd, f1.eet captain; Colby M. Chester, commanding the Galena, the capturing vessel; Brooks Carnes, ,consular agenta,t $'t. Andrews, where the aeizure was made; John G. Mehanjwho was at one time in the employ of Baiz as a detective in this matter; James :H'.(lreerl, chiefmate of the steam-ship; and James McLa.ughlin, one of the crew,-have filed petitions. Although there has been found no decision touching the question of an doubt but what any ruling informer unperthis statute, there can upon the same Bubject, under customs or internal revenuelaws, or any class of forfeitures, will apply with full force wherever any question of doubt An"in(orfuer," in the legal,+s well asthe ordinary sense of the terin, whether the information he gives applies to customs, internal rev.enue, cIjminal ·matters, or forfeitures for any other. reason, is he who gives the information which .leads directly to the'seizutl:l and condemnation, regardless of the questio,ns of evidence furnished, or interest taken iri"the We.stcot v. Bradford, 4 Wash.C. C. 492; Sawyer v. Steele, 3 Wash. C; C. 464; U. S. v. Sirrwns, 7 Fed. Rep. 709; One HundredBarrels Whiskey, 2 Ben. 14; U. S. v. Isla de (Jv,ba, 2 Cliff. 458. , "If the officer seize upon the information, that act invests an inchoate righpntbeinformer, who hasgivf!JIl the inforrliation upon which the seizure was made, which is consummated by a condemnation." Westcot v. Bradford,
TlllL CITY OF MEXIoo;.
supmj Jones v. Shore1sEx'r, 1" Wheat. 462. It "mu.st be the information upon which the seizure was made.· Van Nessv. Buel, 4 Wheat. 74. Mehan, a professioual detective, having learned of the purchase of this steam-ship by Hollander, informed Consul General Baiz, in whose employ he had been in other matters, of this faot, and:of such circumstances connected with the purchase as he considered of importance; who, feelat ing from his official position particular interest in such once took Mehan into his employ to watch the vessel,"" and obtain more definite knowledge. Baiz also transmitted a history of the case to the secretary of state at Washington, had several interviews with the collector of customs at New York, regarding her sailing, and the objects and intentions of the voyage, and succeeded in preventing the shipping of the arms and ammunition. He aho visited Washington, and had interviews with the secretary of state and attorney general, and had correspondence with the district attorney of New York, regarding both this vessel and the steam-ship Framm,.which finally carried the arms and ammunition. There is no doubt but what he did everything in his power to prevent or thwart her voyage, and to influence the authorities at New York and Washington to interfere, but all to no purpose. The principal recognition his information appears to have received was a letter from the attorney of the United States at New York, inquiring what evidence he had, and promises from the departments at Washington that the matter should be attended to. Surely it did not result in a seizure of the vessel; and although, after the capture, his assistance in obtaining evidence for use in the trial was of much value, it does not appear that any party who was aotive in the seizure had any information from him, or orders or instructions from those whom he had informed. The ,petitiotler Mehan, who first obtained information of the sale to Hollander, and reported it to Baiz, acted after that entirely under him, and conveyed his information through him. He suggested the visit to Washington, and accompanied him to the collector's office; but hi8ioformation accomplished no more than did that of Baiz, as they were merged before they reached any official. His information had no weight in the seizure, as it became that of Baiz, and amounted to no more. The history of the case shows that although Consul Baiz did all he could to interest the officers of the government in his behalf, and satisfy them that enough was being attempted to ju!,!tify or demand their action, he failed in dojng so, and the steam-ship cleared with a legal clearance, and alleff'ect of his information was left behind. There is nothing to show that either the consul at St. Andrews, or the naval authorities who finally made the seizure, had' instructions from anyone growing out of the information of Baiz, given at Washington or New York; but everything shows that nothing was done by anyone in authority to interfere with her movements until after the positive stand taken by the crew. Green, the first mate, has by his own testimony in this hearing made a. very strong case in his own behalf; and were this a cause by itself, and the only testimony to be considered that taken and presented with the petitions for the informer's share, there could be no doubt but what he
has put himself in a position where his claim could not be questioned; but this is but a part of a supplementary hearing of one already heard in part, and in which the judgment to be givenis but one of equal importance, and as necessarily following from the whole trial of the case as the judgment of forfeiture already pronounced. The entire vessel is in no respect forfeited to the United States, to whom the informer can look for his share, but it is forfeited to his use; and, had the general hearing been fully satisfactory upon that question, the informer should have'been declared in the same judgment with the forfeiture. The entire testimony in the main case is the court in the question now pending, and. is considered. as assisting in determining it. That testimony shows that while questions, suspicions, and surmises had existe.damong the orew, and applications to consular officers had been made by different members of it at the different ports, nothing. had been done which looked towards a seizure until they were about to clear for Kingston, Jamaica, from St. Andrews. The testimony of disinterested witto have been about these: nessesshows at this time the The eonsularagent at St. Andrews, being on board in the cabin with Capt. Kenya short tiine before the contemplated leaving of thevesBel, upon coming out of the cabin, being about to leave the ship, found the entire crew assembled in the starboard'gangway', demanding audience. This being granted, statenients of their suspicions, of the facts they knew, and their protests against proceeding, were made. Ayres, the chief cook, says he was the spokesman who addressed the consul. Greene says: "They told him they did not wish to proceed any further in the vessel." He says in his testimony upon this question that he brought the consul down to the crew after he had told him his story, but this does not appear to have been the case, when the testimony of Capt. Kelly is considered. But yet no step was taken looking to a seizure, and the consul's suggestion that he should go to Kingston with them was accepted, and arrangements made' for them to proceed on the voyage. After his leaving that night, the crew had another meeting, and further considered the case, and upon his .return in the morning presented a formal written protest, setting up what they had before- stated, and refusing to. proceed under any circumstances. This the consul declared looked serious, necessitating some action by him, and he began the first official; interference in anticipation of seizure. This written protest was not in Greene's handwriting, and was signed by all the Il;lembers of the crew. The consu!took all the crew ashore, and took the testimony of each upon the charges preferred by them against the steam-ship, master, and passengers. At this hearing, as 'shown by the records of the consular investigation, several members of the crew took a more prominent and active part than did Greene. -It was only after this thorough investigationand examination under oath that a schooner was chartered, and sent fora man-Of-war, and the consul general, upon the arrival of whom the investigation was continued and the seizure made. inWithout doubt Greene joined with the rest of the crew in formation.and protesting against proceeding, but that he should have the
THE CITY OF MEXICO.
entire credit as informer I cannot for a moment 'accept. Having been before the court as witness in the case several times, I feel compelled to say that, weighed in the light of his former testimony, his later ex parte statements in his own behalf should be taken with great allowance. He had had ample opportunity in open court, and inthe presence of otner actors in the same transaction, to state his entire connection with the giving of information, and bringing about the seizure; but the case he rp.ade then was materially different from what he makes now. Without doubt, certain members of the crew were more active and influential in bringing about the final result; but it was "the crew" who demanded to see the consular agent in the gangway, and who on the next morning, protested in writing. The Galena was dispatched to St. Andrews upon application from them, the ,consulate, and not by orders from Washington; and the consular agent was moved to action by their protest, and not.by advices from the ,state department. Without their action, the City of Mexico would undoubtedly have awaited the arrival" of the Framm, which, reached the port Ii few days and ammunition,-:-with what results it is .difficult tosV-J:ll1,ise. Greene and McLaughlin, are the only members of the crew who have appeared as petitioners, and it is claimed that Greerie, being attna' head of the crew and representing them, should be treated as informer, both for that reason and because no one else has made claim and presented evidence as such informer. Neither of these reasons do I cOllsidersufficient to exclude others who may, from an exainination of the principal case" appear to have any rights. This is not a new case, nor did it require Ii petition to give an informer standing in court as stich. The decree to the informer could as well have followed or been embodied in the general decree of forfeiture without an opportunity for a petition as after one had been filed, had the court been satisfied that the ,entire tes-timony touching the question of informer had been heard; and, certainly, holding the case open to give others an opportunity to be heard cannot defeat those already shown to be entitleu. 'In Sawyer v. Steele, 3 Wash. C. C. 464, the officers of the revenUe cutter sued for an informer's share; and although, the suit being at common law, the question was raised whether they should sue jointly or severally, there was no question but what they might share as jointiind common informers. In this case lam satisfied that the crew were the informers, both technically and actually; and, although some were more prominent than others, it is impossible to discriminate in their favor. I think every name was signed to the written protest, and all are entitled to share. The naval officers and consular agent in whose behalf a petition has been filed did their duty as officers in conveying the information received to other official authority, but no information was given by anyone of them but what had been reeei ved in the regular discharge of his duty. It was in the performance of duty touching this snbject-matter, and under special orders to inve!'tigate, that their knowledge was acquired, and reporting the same cannot certainly give rights as informers. It is there-
ordered that, after the payment from the fund now in the registry '[tfie Court of the proper costi> in this hearing, the balance be paid those who were the orew of the steam-ship City of Mexico, as appears from the pay.roU as filed herein, in the petition for seamen's wages, and the same be divided 'between them in proportion to the several rates of monthly wages therein stated.
.:(DiBtrict Oourt, B.
Where the evidence fails to !lhowa refusal by the master of a vessel to accept the services of a pilot, whom, under the law, he was bound to employ, a libel filed bY.' such pilot to the value of services, which. were never rendered, Wlllbe dismissed. .,
In Admiralty. , Hf/fl/rll Flanders, for respondent. Hf/fI,ry. Edmunds" for libelant.
BUTLER,J.The evidence not sustain the lib",I. It does not show that the master refused to take the libelant as pilot. On the contrary, it tends to show that he not., The conversation between the parties by the libelant) seems to hav:e been half jocular. It leaves the impression that Mr. Virden was simply teasing the master respecting the question of pilotage, and that the master answered in the same vein, saying, "I will take you," whUe he. knew that Mr. Virden, personally, would not go. The libel mustpe dismissed, with costs.
lReported by C.13erkeley Taylor, Esq" oltha,Philadelphia bar.